Monday, February 7, 2011

Thursday, February 3, 2011

The Best Advice Your Mother Ever Gave You: Watch Your Mouth!

A recent Oregon Court of Appeals case tells this story:

An employee reports to work three minutes late. His supervisor says, "I guess you just can't f**ing make it to work on time." When the employee fails to respond, his supervisor says, "F**ing what? What? You don't--what? You can't--you ain't got an answer for me?" The employee points out he was only a few minutes late, but the supervisor doesn't want to hear it. "Just f**ing leave," he says. The employee left, and filed for unemployment benefits, thinking he had been fired.

Van Rijn v. Employment Department (2010).

The case is about unemployment benefits, which are not available when an employee is fired for misconduct, or voluntarily quits without good cause. The employer in this case alleged the claimaint voluntarily quit.

Fired or not, the case highlights the need to proceed carefully in tense situations, and to let cooler heads prevail in discipline and termination actions.

If nothing else, you don't want to read these quotes in the court reporter--with your company's name in lights above them!

Bench Notes

It's good to keep tabs on Oregon and Ninth Circuit cases--it helps to know what not to do, and how judges and juries are interpreting the laws.

So here, in no particular order, is the latest news from the courts.

Guilty by Association. You know you shouldn't fire an employee for making a protected complaint. The Supreme Court recently ruled that you must also be careful to avoid firing the complaining employee's friends, family, and associates. In Thompson v. North American Stainless, a male employee claimed he was fired because his fiancee filed a complaint of gender discrimination. The lower courts threw the case out, saying Title VII (the federal anti-discrimination law) does not protect "third parties" from retaliation. The Supreme Court disagreed, noting the law protects people from actions that might dissuade a reasonable worker from filing a complaint, and pointing out a fear of getting your fiance fired might "dissuade" a reasonable worker from filing a complaint. The bottom line: Retaliation is illegal, even if it is directed at someone other than the person filing a complaint. (As an aside, keep in mind Oregon has a specific law prohibiting discrimination solely on the basis of family relationship--so had the two employees been married, there would have been an additional claim under that law).

Disabled Access: Actual versus Potential Obstacles. In Chapman v. Pier 1 Imports, the plaintiff sued over various ADA (Americans with Disabilities) violations, not only as to actual barriers he encountered, but also as to barriers he observed, but which did not actually get in the plaintiff's way when he was at the store. The store argued Chapman couldn't sue over barriers that didn't actually cause a problem for Chapman, but the Ninth Circuit (the federal appeals court for Oregon, Washington, California, Arizona, Montana, Nevada, Hawaii, and Alaska) disagreed. The only requirement (which ultimately Chapman failed to meet) is that a plaintiff specifically state how each barrier/ADA violation impedes or could impede him because of his specific disability. The court's example was this: a blind person could sue over the failure to have braille elevator buttons, even if she never used the elevator; a hearing-impaired person could not.

"Donning and Doffing": That's the peculiar old-fashioned phrase the courts use to talk about putting on work-clothes and taking them off. For many decades, there's been an ongoing debate about when employers have to pay for that time. The basic rule is that if the uniform is required by the employer, necessary for the job, or mutually beneficial for the employer and employee, the donning and doffing time must be paid. The rule was reaffirmed in Bamonte v. City of Mesa, where the Ninth Circuit found police officers do not need to and are not required to put on their uniforms at work--so even if they choose to put on the uniform (and take it off) at work, that is unpaid time.

Good Cause to Quit. You probably already know (especially if you read this blog!) that an employee will not be eligible for unemployment benefits if he quits without good cause. In Stacy v. Employment Department, an employee quit the day after complaining about racial slurs, and was denied benefits because he didn't give his employer time to investigate and address the problem--therefore he had "a reasonable alternative to quitting"--that is, he could have waited to see if his employer fixed the problem. The hidden lesson in this case is that employers should act reasonably promptly to address complaints, but instant action, based only on an employee's complaint, is not required.

A good contrast is Werth v. Employment Department, where the court agreed an employee had no choice but to quit when a co-worker ignored two successive Protective Orders and continued to stalk her at work.

Actual Danger Not at Issue
. A company was cited by the Oregon Occupational Safety and Health Agency ("OR-OSHA") for failure to properly grade a worksite. As part of its defense, the company pointed out OR-OSHA failed to demonstrate there was any actual or even potential danger to its employees. The administrative law judge agreed with the company, but the Court of Appeals said that's not necessary, so long as the regulation "presumes" a violation will result in a hazardous condition. OR-OSHA v. ML Mowat Co.